Fox v. Ohio Val. Gas Corp.
| Decision Date | 30 December 1966 |
| Docket Number | No. 1,No. 20341,20341,1 |
| Citation | 141 Ind.App. 408,222 N.E.2d 412 |
| Parties | William FOX and Juanita Fox, George Fox and Mildred Fox, Appellants, v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuirePipeline Construction Company, Inc., a corporation of Columbus, Indiana. Maurice MILLER v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuirePipeline Construction Company, Inc., a corporation of Columbus, Indiana. Raymond MILLER and Jean Miller v. OHIO VALLEY GAS CORPORATION, a corporation of Winchester, Indiana, and McGuirePipeline Construction Company, Inc., a corporation of Columbus, Indiana, Appellees |
| Court | Indiana Appellate Court |
Cecil C. Tague, Sr., Roger H. Smith, Brookville, for appellants.
Ewbank & Meyer, Lawrenceburg, Paul D. Lawson, Columbus, Mendenhall, Hunter & Stohler, Winchester, for appellees.
This cause was appealed from the Dearborn Circuit Court, sitting in equity, the Honorable William M. Lienberger, Special Judge.
The appellants, in their belief, alleged jurisdiction of the Supreme Court of Indiana for the reason that they had been denied their rights guaranteed them by the Constitution of the United States and the Constitution of the State of Indiana. The Supreme Court in viewing the case found no constitutional question involved and the cause was transferred to this court under § 4-217 Burns' 1946 Replacement.
The opinion of the Supreme Court appears in Ind., 204 N.E.2d 366.
The issues were formed by the complaint of the appellants, answer by appellee to which an answer was filed by the appellants. We take the statement of the Supreme Court as to what the issues were by summarizing the appellants' complaint on page 367 of 204 N.E.2d.
After the introduction of evidence and at a proper time, special findings of fact and conclusions of law were requested which were entered by the court in favor of the appellees and judgment was entered accordingly.
The special findings of fact may be summarized as follows:
The appellants are owners of the fee in land abutting Yorkville Road in Dearborn County. The appellee, Ohio Valley Gas Corporation, is a public utility organized under the laws of this state and engaged in the purchase, transmission, distribution and sale of natural gas within its territory as established by the Public Service Commission of Indiana. Appellee McGuire Pipeline Corporation has a contract with its co-appellee for laying the pipeline. Prior to December 7, 1962, the Board of Commissioners of Dearborn County, Indiana, granted the appellee, Ohio Valley Gas Corporation (afterward called Ohio) permission to use the Yorkville Road for laying its pipeline; there was a contract to this effect for which Ohio paid Dearborn County $100.00.
On December 14, 1962, Ohio was granted a Certificate of Convenience and Necessity by the Public Service Commission to render gas distribution service to customers within the area one mile on either side of the pipeline in Dearborn County.
Ohio has not acquired any rights by condemnation proceedings nor has it received permission from the appellants to construct the pipeline along the section of Yorkville Road which abuts appellants' properties. It has not paid any money to appellants for the right to construct the pipeline along the road. The construction of the pipeline is necessary to transport gas to Connersville where Ohio has approximately 3,300 customers and also for approximately 200 potential customers along the pipeline as it crosses Dearborn County.
The Court also found that money damages would adequately compensate the abutting property owners and that their remedy at law was adequate.
The conclusions of law upon the facts, as stated, were:
'1. That the law is with the defendants.
2. That on December 7, 1962, the public was rightfully in the use and possession of the Yorkville Road, including that portion of said right-of-way where it crossed the land of the Plaintiffs, and that the Commissioners of Dearborn County were duly authorized to give the right to lay a pipeline, conduit or private drain across or along said county highway and had granted a right to the Defendants, Ohio Valley Gas Corporation, to construct its pipeline within the right-of-way of the Yorkville Road.
3. That on said day, the Plaintiffs had no right to enjoin the Defendants' construction of said pipeline.
4. That the Plaintiffs' remedy at law is adequate and public policy requires that the rights of the community should be protected and the landowner left to his remedy at law.
5. That the Plaintiffs are not entitled to a permanent injunction for want of equity and the Defendants ought to recover their costs.
6. That the Defendants are entitled to an injunction perpetually enjoining the Plaintiffs from interfering in any way with the construction, maintenance or operation of said pipeline, or interfering with the right to construct, maintain and operate its pipeline in and along said Yorkville Road.'
The grounds alleged in the motion for new trial are:
1. The finding of the court is contrary to law;
2. The finding of the court is not sustained by sufficient evidence; and 3. Error in refusing to allow a witness to answer certain questions.
The Court overruled the motion for new trial and this is the sole assignment of error upon which the appeal was taken. We shall consider the second ground in the motion for a new trial and then address ourselves to the first and third grounds in the motion.
The judgment below was in effect a negative judgment as to the appellants and therefore no question is presented for our consideration under the assignment that the finding of the court was not sustained by sufficient evidence, Glass v. Bailey (1953), 233 Ind. 266, 118 N.E.2d 800; Metrailer, et al. v. Bishop, et al. (1959), 130 Ind.App. 77, 79, 162 N.E.2d 94, 95.
This brings us now to the first assignment of error that the finding of the court is contrary to law both this court and the Supreme Court have held that where the appellant is able to demonstrate that he was denied the relief to which he was entitled, this court may reverse on the grounds that the finding of the court was contrary to law. This assignment requires us to consider all of the evidence most favorable to the appellee to determine whether or not reasonable-minded men would have arrived at a different result, Gorby v. McEndarfer (1963), 135 Ind.App. 74, 191 N.E.2d 786; Myers v. Wyrick (1963), 134 Ind.App. 670, 191 N.E.2d 107.
In considering the argument portion of the appellants' brief in light of this assignment, we address ourselves to the question of whether or not the action of the appellees constituted an additional servitude upon the appellants interest in the real estate in question. Our research has covered cases of a similar nature in Ohio, Minnesota, West Virginia, Washington, Kentucky, and Indiana. We feel that for clarity in this opinion, we should discuss those cases and the underlying legal principles involved.
The most clear cut case involving the scope of an easement for a rural road is Kincaid v. Indianapolis Gas Co. (1895), 124 Ind. 577, 580, 24 N.E. 1066, 1067. In Kincaid the court found the necessary basis for granting an injunction, i.e. the existence of a property right:
'That the appellant has a special private interest in the lands upon which the highway is located, which cannot be taken from him without compensation, is quite clear upon principle and authority.
When the court balanced the equities...
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Farmers Mutuals Ins. Co. v. Wolfe, 20693
...exactly what the appellant has done in the case at bar. Glass v. Bailey (1953), 233 Ind. 266, 118 N.E.2d 800; Fox v. Ohio Valley Gas Corporation (1966), Ind.App., 222 N.E.2d 412; Calvert v. London (1965), Ind.App., 210 N.Ed.2d 376; Montgomery v. Lincoln Laboratories, Inc. (1965), Ind.App., ......
- Fox v. Ohio Val. Gas Corp.
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Fox v. Ohio Val. Gas Corp.
...of Indiana under Acts 1901, ch. 247, § 10, p. 565; 1933, ch. 151, § 1, p. 800, being Burns' Ind.Stat.Anno. § 4--215 (1956 Repl.). See 222 N.E.2d 412 and 228 N.E.2d 42 for opinions of Appellate This is an appeal from a judgment rendered in favor of appellees' pipe line companies in the Dearb......